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Doug Williams was given the VOLUNTEER ADVOCATE AWARD as "the one
person most responsible for the Employee Polygraph Protection Act
becoming a Federal Law". This law prohibits the use of
polygraph testing as a condition of employment in the private
sector, and it also gives some rights and protections to those who
are exempt from the law and still subjected to polygraph
testing.
Employee Polygraph Protection Act
The
Employee Polygraph Protection Act prohibits most private employers
from using lie detector tests either for pre-employment screening or
during the course of employment.
Prohibitions
Employers are generally prohibited from requiring or requesting any
employee or job applicant to take a lie detector test, and from
discharging, disciplining, or discriminating against an employee or
prospective employee for refusing to take a test or for exercising
other rights under the Act.
Exemptions *
Federal, State and local governments are not affected by the law.
Also, the law does not apply to tests given by the Federal
Government to certain private individuals engaged in national
security-related activities. The Act permits polygraph (a kind of
lie detector) tests to be administered in the private sector,
subject to restrictions, to certain prospective employees of
security service firms (armored car, alarm, and guard), and of
pharmaceutical manufacturers, distributors and dispensers. The Act
also permits polygraph testing, subject to restrictions, of certain
employees of private firms who are reasonably suspected of
involvement in a workplace incident (theft, embezzlement, etc.) that
resulted in economic loss to the employer.
Examinee Rights
Where polygraph tests are permitted, they are subject to numerous
strict standards concerning the conduct and length of the test.
Examinees have a number of specific rights, including the right to a
written notice before testing, the right to refuse or discontinue a
test, and the right not to have test results disclosed to
unauthorized persons.
Enforcement
The Secretary of Labor may bring court actions to restrain
violations and assess civil penalties up to $10,000against
violators. Employees or job applicants may also bring their own
court actions.
Additional Information
Additional information may be obtained, and complaints of violations
may be filed, at local offices of the Wage and Hour Division, which
are listed in the telephone directory under U.S. Government,
Department of Labor, Employment Standards Administration.
THE LAW REQUIRES EMPLOYERS TO DISPLAY THIS POSTER WHERE EMPLOYEES
AND JOB APPLICANTS CAN READILY SEE IT.
* The law does not preempt any provision of any State or local law
or any collective bargaining agreement which is more restrictive
with respect to lie detector tests.
U.S.
DEPARTMENT OF LABOR
EMPLOYMENT STANDARDS ADMINISTRATION
Wage and Hour Division
Washington, D.C. 20210
WH
Publication 1462
September 1988
UNITED STATES CODE
TITLE 29 - LABOR
CHAPTER 22 - EMPLOYEE
POLYGRAPH PROTECTION
Contents
As used in this chapter:
- (1) Commerce
The term ''commerce'' has the meaning provided by section 203(b) of this
title.
- (2) Employer
The term ''employer'' includes any person acting directly or indirectly in
the interest of an employer in relation to an employee or prospective employee.
- (3) Lie detector
The term ''lie detector'' includes a polygraph, deceptograph, voice stress
analyzer, psychological stress evaluator, or any other similar device (whether mechanical
or electrical) that is used, or the results of which are used, for the purpose of
rendering a diagnostic opinion regarding the honesty or dishonesty of an individual.
- (4) Polygraph
The term ''polygraph'' means an instrument that -
- (A) records continuously, visually, permanently, and
simultaneously changes in cardiovascular, respiratory, and electrodermal patterns as
minimum instrumentation standards; and
- (B) is used, or the results of which are used, for the
purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an
individual.
- (5) Secretary
The term ''Secretary'' means the Secretary of Labor.
Except as provided in sections and 2007 of this title,
it shall be unlawful for any employer engaged in or affecting commerce or in the
production of goods for commerce -
- (1) directly or indirectly, to require, request,
suggest, or cause any employee or prospective employee to take or submit to any lie
detector test;
- (2) to use, accept, refer to, or inquire concerning the
results of any lie detector test of any employee or prospective employee;
- (3) to discharge, discipline, discriminate against in
any manner, or deny employment or promotion to, or threaten to take any such action
against -
- (A) any employee or prospective employee who refuses,
declines, or fails to take or submit to any lie detector test, or
- (B) any employee or prospective employee on the basis
of the results of any lie detector test; or
- (4) to discharge, discipline, discriminate against in
any manner, or deny employment or promotion to, or threaten to take any such action
against, any employee or prospective employee because -
- (A) such employee or prospective employee has filed any
complaint or instituted or caused to be instituted any proceeding under or related to this
chapter,
- (B) such employee or prospective employee has testified
or is about to testify in any such proceeding, or
- (C) of the exercise by such employee or prospective
employee, on behalf of such employee or another person, of any right afforded by this
chapter.
The Secretary shall prepare, have printed, and
distribute a notice setting forth excerpts from, or summaries of, the pertinent provisions
of this chapter. Each employer shall post and maintain such notice in conspicuous places
on its premises where notices to employees and applicants to employment are customarily
posted.
- (a) Civil penalties
- (1) In general
Subject to paragraph (2), any employer who violates any provision of this
chapter may be assessed a civil penalty of not more than $10,000.
- (2) Determination of amount
In determining the amount of any penalty under paragraph (1), the Secretary
shall take into account the previous record of the person in terms of compliance with this
chapter and the gravity of the violation.
- (3) Collection
Any civil penalty assessed under this subsection shall be collected in the
same manner as is required by subsections (b) through (e) of section 1853 of this title
with respect to civil penalties assessed under subsection (a) of such section.
- (b) Injunctive actions by Secretary
The Secretary may bring an action under this section to restrain violations
of this chapter. The Solicitor of Labor may appear for and represent the Secretary in any
litigation brought under this chapter. In any action brought under this section, the
district courts of the United States shall have jurisdiction, for cause shown, to issue
temporary or permanent restraining orders and injunctions to require compliance with this
chapter, including such legal or equitable relief incident thereto as may be appropriate,
including, but not limited to, employment, reinstatement, promotion, and the payment of
lost wages and benefits.
- (c) Private civil actions
- (1) Liability
An employer who violates this chapter shall be liable to the employee or
prospective employee affected by such violation. Such employer shall be liable for such
legal or equitable relief as may be appropriate, including, but not limited to,
employment, reinstatement, promotion, and the payment of lost wages and benefits.
- (2) Court
An action to recover the liability prescribed in paragraph (1) may be
maintained against the employer in any Federal or State court of competent jurisdiction by
an employee or prospective employee for or on behalf of such employee, prospective
employee, and other employees or prospective employees similarly situated. No such action
may be commenced more than 3 years after the date of the alleged violation.
- (3) Costs
The court, in its discretion, may allow the prevailing party (other than the
United States) reasonable costs, including attorney's fees.
- (d) Waiver of rights prohibited
The rights and procedures provided by this chapter may not be waived by
contract or otherwise, unless such waiver is part of a written settlement agreed to and
signed by the parties to the pending action or complaint under this chapter.
Top of Page
- (a) No application to governmental employers
This chapter shall not apply with respect to the United States Government,
any State or local government, or any political subdivision of a State or local
government.
- (b) National defense and security exemption
- (1) National defense
Nothing in this chapter shall be construed to prohibit the administration, by
the Federal Government, in the performance of any counterintelligence function, of any lie
detector test to -
- (A) any expert or consultant under contract to the
Department of Defense or any employee of any contractor of such Department; or
- (B) any expert or consultant under contract with the
Department of Energy in connection with the atomic energy defense activities of such
Department or any employee of any contractor of such Department in connection with such
activities.
- (2) Security
Nothing in this chapter shall be construed to prohibit the administration, by
the Federal Government, in the performance of any intelligence or counterintelligence
function, of any lie detector test to -
- (A)
- (i) any individual employed by, assigned to, or detailed
to, the National Security Agency, the Defense Intelligence Agency, or the Central Intelligence
Agency,
- (ii) any expert or consultant under contract to any such
agency,
- (iii) any employee of a contractor to any such agency,
- (iv) any individual applying for a position in any such
agency, or
- (v) any individual assigned to a space where sensitive
cryptologic information is produced, processed, or stored for any such agency; or
- (B) any expert, or consultant (or employee of such
expert or consultant) under contract with any Federal Government department, agency, or
program whose duties involve access to information that has been classified at the level
of top secret or designated as being within a special access program under section 4.2(a)
of Executive Order 12356 (or a successor Executive order).
- (c) FBI contractors exemption
Nothing in this chapter shall be construed to prohibit the administration, by
the Federal Government, in the performance of any counterintelligence function, of any lie
detector test to an employee of a contractor of the Federal Bureau of Investigation of the
Department of Justice who is engaged in the performance of any work under the contract
with such Bureau.
- (d) Limited exemption for ongoing investigations
Subject to sections 2007 and 2009 of this title, this chapter shall not
prohibit an employer from requesting an employee to submit to a polygraph test if -
- (1) the test is administered in connection with an
ongoing investigation involving economic loss or injury to the employer's business, such
as theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or
sabotage;
- (2) the employee had access to the property that is the
subject of the investigation;
- (3) the employer has a reasonable suspicion that the
employee was involved in the incident or activity under investigation; and
- (4) the employer executes a statement, provided to the
examinee before the test, that -
- (A) sets forth with particularity the specific incident
or activity being investigated and the basis for testing particular employees,
- (B) is signed by a person (other than a polygraph
examiner) authorized to legally bind the employer,
- (C) is retained by the employer for at least 3 years,
and
- (D) contains at a minimum -
- (i) an identification of the specific economic loss or
injury to the business of the employer,
- (ii) a statement indicating that the employee had access
to the property that is the subject of the investigation, and
- (iii) a statement describing the basis of the employer's
reasonable suspicion that the employee was involved in the incident or activity under
investigation.
- (e) Exemption for security services
- (1) In general
Subject to paragraph (2) and sections 2007 and 2009 of this title, this
chapter shall not prohibit the use of polygraph tests on prospective employees by any
private employer whose primary business purpose consists of providing armored car
personnel, personnel engaged in the design, installation, and maintenance of security
alarm systems, or other uniformed or plainclothes security personnel and whose function
includes protection of -
- (A) facilities, materials, or operations having a
significant impact on the health or safety of any State or political subdivision thereof,
or the national security of the United States, as determined under rules and regulations
issued by the Secretary within 90 days after June 27, 1988, including -
- (i) facilities engaged in the production, transmission,
or distribution of electric or nuclear power,
- (ii) public water supply facilities,
- (iii) shipments or storage of radioactive or other toxic
waste materials, and
- (iv) public transportation, or
- (B) currency, negotiable securities, precious
commodities or instruments, or proprietary information.
- (2) Access
The exemption provided under this subsection shall not apply if the test is
administered to a prospective employee who would not be employed to protect facilities,
materials, operations, or assets referred to in paragraph (1).
- (f) Exemption for drug security, drug theft, or drug
diversion investigations
- (1) In general
Subject to paragraph (2) and sections 2007 and 2009 of this title, this
chapter shall not prohibit the use of a polygraph test by any employer authorized to
manufacture, distribute, or dispense a controlled substance listed in schedule I, II, III,
or IV of section 812 of title 21.
- (2) Access
The exemption provided under this subsection shall apply -
- (A) if the test is administered to a prospective
employee who would have direct access to the manufacture, storage, distribution, or sale
of any such controlled substance; or
- (B) in the case of a test administered to a current
employee, if -
- (i) the test is administered in connection with an
ongoing investigation of criminal or other misconduct involving, or potentially involving,
loss or injury to the manufacture, distribution, or dispensing of any such controlled
substance by such employer, and
- (ii) the employee had access to the person or property
that is the subject of the investigation.
- (a) Test as basis for adverse employment action
- (1) Under ongoing investigations exemption
Except as provided in paragraph (2), the exemption under subsection (d) of
section 2006 of this title shall not apply if an employee is discharged, disciplined,
denied employment or promotion, or otherwise discriminated against in any manner on the
basis of the analysis of a polygraph test chart or the refusal to take a polygraph test,
without additional supporting evidence. The evidence required by such subsection may serve
as additional supporting evidence.
- (2) Under other exemptions
In the case of an exemption described in subsection (e) or (f) of such
section, the exemption shall not apply if the results of an analysis of a polygraph test
chart are used, or the refusal to take a polygraph test is used, as the sole basis upon
which an adverse employment action described in paragraph (1) is taken against an employee
or prospective employee.
- (b) Rights of examinee
The exemptions provided under subsections (d), (e), and (f) of section 2006
of this title shall not apply unless the requirements described in the following
paragraphs are met:
- (1) All phases
Throughout all phases of the test -
- (A) the examinee shall be permitted to terminate the
test at any time;
- (B) the examinee is not asked questions in a manner
designed to degrade, or needlessly intrude on, such examinee;
- (C) the examinee is not asked any question concerning -
- (i) religious beliefs or affiliations,
- (ii) beliefs or opinions regarding racial matters,
- (iii) political beliefs or affiliations,
- (iv) any matter relating to sexual behavior; and
- (v) beliefs, affiliations, opinions, or lawful activities
regarding unions or labor organizations; and
- (D) the examiner does not conduct the test if there is
sufficient written evidence by a physician that the examinee is suffering from a medical
or psychological condition or undergoing treatment that might cause abnormal responses
during the actual testing phase.
- (2) Pretest phase
During the pretest phase, the prospective examinee -
- (A) is provided with reasonable written notice of the
date, time, and location of the test, and of such examinee's right to obtain and consult
with legal counsel or an employee representative before each phase of the test;
- (B) is informed in writing of the nature and
characteristics of the tests and of the instruments involved;
- (C) is informed, in writing -
- (i) whether the testing area contains a two-way mirror, a
camera, or any other device through which the test can be observed,
- (ii) whether any other device, including any device for
recording or monitoring the test, will be used, or
- (iii) that the employer or the examinee may (with mutual
knowledge) make a recording of the test;
- (D) is read and signs a written notice informing such
examinee -
- (i) that the examinee cannot be required to take the test
as a condition of employment,
- (ii) that any statement made during the test may
constitute additional supporting evidence for the purposes of an adverse employment action
described in subsection (a) of this section,
- (iii) of the limitations imposed under this section,
- (iv) of the legal rights and remedies available to the
examinee if the polygraph test is not conducted in accordance with this chapter, and
- (v) of the legal rights and remedies of the employer
under this chapter (including the rights of the employer under section 2008(c)(2) of this
title); and
- (E) is provided an opportunity to review all questions
to be asked during the test and is informed of the right to terminate the test at any
time.
- (3) Actual testing phase
During the actual testing phase, the examiner does not ask such examinee any
question relevant during the test that was not presented in writing for review to such
examinee before the test.
- (4) Post-test phase
Before any adverse employment action, the employer shall -
- (A) further interview the examinee on the basis of the
results of the test; and
- (B) provide the examinee with -
- (i) a written copy of any opinion or conclusion rendered
as a result of the test, and
- (ii) a copy of the questions asked during the test along
with the corresponding charted responses.
- (5) Maximum number and minimum duration of tests
The examiner shall not conduct and complete more than five polygraph tests on
a calendar day on which the test is given, and shall not conduct any such test for less
than a 90-minute duration.
- (c) Qualifications and requirements of examiners
The exemptions provided under subsections (d), (e), and (f) of section 2006
of this title shall not apply unless the individual who conducts the polygraph test
satisfies the requirements under the following paragraphs:
- (1) Qualifications
The examiner -
- (A) has a valid and current license granted by
licensing and regulatory authorities in the State in which the test is to be conducted, if
so required by the State; and
- (B) maintains a minimum of a $50,000 bond or an
equivalent amount of professional liability coverage.
- (2) Requirements
The examiner -
- (A) renders any opinion or conclusion regarding the
test -
- (i) in writing and solely on the basis of an analysis of
polygraph test charts,
- (ii) that does not contain information other than
admissions, information, case facts, and interpretation of the charts relevant to the purpose
and stated objectives of the test, and
- (iii) that does not include any recommendation concerning
the employment of the examinee; and
- (B) maintains all opinions, reports, charts, written
questions, lists, and other records relating to the test for a minimum period of 3 years
after administration of the test.
-
(a) In general
A person, other than the examinee, may not disclose information obtained
during a polygraph test, except as provided in this section.
(b) Permitted disclosures
A polygraph examiner may disclose information acquired from a polygraph test
only to -
- (1) the examinee or any other person specifically
designated in writing by the examinee;
- (2) the employer that requested the test; or
- (3) any court, governmental agency, arbitrator, or
mediator, in accordance with due process of law, pursuant to an order from a court of
competent jurisdiction.
(c) Disclosure by employer
An employer (other than an employer described in subsection (a), (b), or (c)
of section 2006 of this title) for whom a polygraph test is conducted may disclose
information from the test only to -
- (1) a person in accordance with subsection (b) of this
section; or
- (2) a governmental agency, but only insofar as the
disclosed information is an admission of criminal conduct.
Except as provided in subsections (a),
(b), and (c) of section 2006 of this title, this chapter shall not preempt any provision
of any State or local law or of any negotiated collective bargaining agreement that
prohibits lie detector tests or is more restrictive with respect to lie detector tests
than any provision of this chapter.
Get
PROPERLY prepared to pass your polygraph test!
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Here's something to think about: If the polygraph really does work,
we don't need a Federal Law to protect people from it.
But the fact is, we do need the law because the polygraph doesn't
work! Polygraph testing is
dangerous because it often brands truthful people as liars - and as a
result, it ruins
reputations, careers, and lives!
If you are not
protected by this law, and you are subjected to polygraph testing,
you must learn how to protect yourself. You must get
properly prepared for your polygraph test - that is your only protection!
GET PROPERLY
PREPARED TO PASS YOUR POLYGRAPH TEST! CLICK HERE
DO
YOU NEED MORE PERSONAL ATTENTION?
In addition to his excellent manual and training video/DVD, Doug Williams also offers personal polygraph
test preparation training - a
confidential, comprehensive, personalized instruction consisting of
these three elements;
If you need Doug
Williams to
testify as an expert witness in a case involving the polygraph, the fee is:
$2,000 per day for
testimony (including depositions)
For more information about Personal Polygraph Test
Preparation Training click here:
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